Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Rana Singh - Appellant
Versus
State of Bihar - Respondent
Criminal Appeal (S J) No. 2487 of 2017
Decided On : 25-03-2021
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(b)(ii)(C) and 42 – Constitution of India – Article 21 – Seizure of Ganja – Conviction and sentence – Total non-compliance of requirement of sub-sections (1) and (2) of Section 42 of N.D.P.S. Act is impermissible – Total non-compliance would adversely affect prosecution case – There is nothing on record to substantiate that informant police officer got confidential information received by him reduced into writing and communicated to his immediate superior officer – Such writing might have been in physical form or electronic mode but nothing was brought on record that mandate of Section 42 of N.D.P.S. Act was complied – For this lapse alone prosecution case is fit to be disbelieved and discarded – Fair trial is a constitutional guaranty to accused under Article 21 of Constitution of India – Fair trial includes fair investigation – Onus lies on prosecution to demonstrate that investigation was fair enough to not cause any prejudice to accused – So-called seizure witnesses have specifically deposed that no search or seizure was made in their presence; rather their signature was taken on blank paper – Police pressurized for signature on blank paper – These witnesses are not hostile witnesses – There is no evidence as to who identified house of appellant; rather prosecution evidence is that appellant was not known to police party – Conflicting evidence creates doubt on trustworthiness of witnesses to have participated in search of house of appellant – Malkhana register was not produced to Court to ensure that seized materials were kept in custody of some person other than informant nor incharge Malkhana was examined to substantiate the fact – There is total non-compliance of mandate of Section 42 of N.D.P.S. Act – Prosecution evidence is shaky and suspicious as to whether prosecution witnesses have really participated in any actual search and seizure – Independent witnesses of seizure have not supported factum of seizure in their presence – Sampling of seized articles was not properly done – Prosecution has failed to prove that place of recovery is of appellant and appellant was solely responsible for recovered Ganja – Prosecution failed to prove that sanctity in matter of sealing seized narcotics was maintained besides sanctity in matter of preserving it in possession and condition which leaves no room to doubt about chances of tampering – This is a case wherein prosecution has failed to prove charge against appellant beyond all reasonable doubts – Impugned judgment and order of sentence set aside. (Paras 6 to 11)
JUDGMENT
Birendra Kumar, J. - This is an appeal against the judgment of conviction. The sole appellant has been convicted for offences under Sections 20(b)(ii)(C) of the N.D.P.S. Act in connection with N.D.P.S. Case No.8 of 2015, arising out of Brahampur (Chakki O.P.) P.S. Case No.336 of 2015, by learned Sessions Judge-cum-Special Judge, Buxar. By the same judgment the appellant was acquitted of the charges under Sections 27(a) and 29 of the N.D.P.S. Act. The learned trial Judge has sentenced the appellant to undergo rigorous imprisonment of ten years and to pay a fine of rupees one lac. In default of payment of fine the appellant would undergo further two years rigorous imprisonment. The judgment of conviction dated 08.06.2017 and order of sentence dated 12.06.2017 are under challenge in this appeal.
2. The prosecution case, as disclosed in the self-statement of Sub-Inspector Narad Muni Singh (PW 1), is that on 24.11.2015, in the morning, the informant got confidential information that in village Visheshwar Dera illegal Ganja has come in the house of the appellant for commercial purpose. Sanha entry was made of the information and the senior officers were informed. The informant along with the police team consisting of PW 4 Naresh Yadav, PW 6 Shashi Prakash, PW 7 Harendra Kumar and PW 8 Amit Kumar all constables proceeded to verify the correctness of the information. As soon as the police team reached village Visheshwar Dera near the house of the appellant at 8:00 AM, one person coming out from the house started fleeing, when he saw the police party. However, he was apprehended by the police. In the meantime, the people nearby assembled and in presence of witness Teja Paswan (PW 9) and Vijmal Paswan (PW 10) the appellant was informed that police has information that huge quantity of Ganja is in his house. The appellant was further informed whether he was willing to be searched in presence of a Magistrate. On willingness of the appellant, services of PW 2 Yogendra Paswan, B.D.O., was taken as Magistrate. In presence of the witnesses and the Magistrate house of the appellant was searched and from a room a black coloured bag and a greenish black coloured bag was noticed. From the black coloured bag in a rapped polythene 20 Kgs 600 Gms and from greenish brown coloured bag 21 Kg 200 gms of Ganja was recovered. From both the packets a small quantity of 25 gm was taken out for forensic examination and three samples were made of that which were sealed in two small plastic box (dabba) and one small box (dabba meant for keeping Jarda). After sealing the recovered narcotics and samples and taking signature of the witnesses and Magistrate on that, the informant also signed, took the appellant into custody and proceeded for police station. After investigation the police submitted charge sheet and accordingly the appellant faced the trial.
3. During course of trial, the prosecution examined altogether 12 witnesses. The seizure list is on the record as Exhibit-1, the self-statement of the informant as Exhibit-2, the formal FIR as Exhibit-3, arrest memo of the appellant as Exhibit-4, written consent of the appellant to be searched in presence of Magistrate as Exhibit-5 and samples taken for forensic examination as Exhibit-6. Exhibit-7 series are signatures of different persons on different documents and Exhibit-8 is the forensic report.
4. Mr. Vikram Deo Singh, learned counsel for the appellant, contends that the prosecution case suffers from serious infirmities which have been ignored by the learned trial Judge. The prosecution has failed to establish compliance of the requirement of Section 42(1) and 42(2) of the N.D.P.S. Act as nothing was brought on the record to substantiate that the informant got the confidential information reduced to writing and the writing was communicated to the immediate superior officer. Learned counsel submits that in the case of Karnail Singh V. State of Haryana, (2009) 8 SCC 539, the Constitution Bench of the Hon'
Point of Law : NDPS Act – Conviction set aside - Complete lack of evidence as to whether the seized substances were sealed at all muchless in presence of responsible person.
(1) Admission of accused during course of his interrogation cannot be made admissible in evidence. (2) Fair trial is a constitutional guarantee to an accused under Article 21. Fair trial includes fai....
Prosecution's failure to comply with mandatory provisions of the NDPS Act led to the acquittal of the appellants due to insufficient evidence.
Non-compliance with statutory provisions of the N.D.P.S. Act regarding search and seizure vitiates the prosecution case, warranting acquittal on grounds of reasonable doubt.
The conviction under the N.D.P.S. Act was overturned due to significant procedural violations on search and seizure, establishing that prosecution must comply with established legal protocols.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
